HKSAR v. Wu Wei Tian

HCMA000957/2003

HCMA 957/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 957 OF 2003

(ON APPEAL FROM ESCC 2996/2003)

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Coram: Deputy High Court Judge E Toh in Court

Date of Hearing: 8 January 2004

Date of Judgment: 8 January 2004

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J U D G M E N T

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1.This is an appeal against sentence. The Appellant had pleaded guilty in the Magistrate's Court to one count of possession of forged identity card and one count of possession of a false instrument. He was sentenced to a term of 8 months' imprisonment on each count and both to be served concurrently.

2.Ms Cheng who represents the Appellant in this case, had submitted that the sentences were manifestly excessive and Ms Cheng basically submitted that the learned Magistrate should have followed the guidelines laid down in the case of Chan Man Mo [2001] 1 HKLRD 121 she said that the learned Magistrate in sentencing the Appellant was concerned with the fact that the Appellant could have used these documents to obtain employment and therefore the Appellant's case would fall within the category IV of the guidelines laid down in Chan Man Mo which would warrant a sentence of 4 months' imprisonment.

3.The second ground of appeal is that the learned Magistrate had no basis to suggest that the forged identity card can also be used as a travel document and finally, Ms Cheng submitted that the Appellant had not produced the forged documents to the police officer.

4.The facts of this case was that the Appellant had arrived in Hong Kong on a two-way permit on 17 September this year and was permitted to the stay until 30 September. He was arrested on 18 September, and inside his waist bag was found the forged documents. Under caution, he admitted that he had bought these forged documents in Shenzhen for HK$300 and he had intended to use these documents to secure work on the building sites in Hong Kong.

5.Ms Cheng also made a point that when sentencing the Appellant, the learned Magistrate merely had her mind on the fact that he could use these documents to obtain employment and not for prolonging his stay in Hong Kong as is the case in the case of Chan Hanwei HCMA No. 148 of 2003. It is true that in that case of Chan Hanwei, the learned Magistrate had found that apart from using the forged documents to obtain employment, he considered that the only inference to draw was that he would also be using it to prolong his stay.

6.It is true that in the present case, the learned Magistrate when sentencing the Appellant considered that these documents were forged in order for the Appellant to obtain employment and she made in the second last paragraph of her Reasons for Sentence, she then said this:

"The forged documents are easy and cheap to obtain. In addition identity cards can be used as travel documents."

7.Therefore, the learned Magistrate must have thought that the Appellant could use this identity card as a mean of claiming his identity if he should, for example, travel to Macau on the strength of the identity card, he could then upon his return to Hong Kong claim the same identity using the forged card.

8.The learned Magistrate's attention had in fact been directed to the case of Chan Man Mo but she considered that the Appellant had come to Hong Kong on his two-way permit, well prepared and it was therefore a premeditated offences because he had bought these documents in Shenzhen. This type of offence is becoming more prevalent here because of the comparative ease with which two-way permits can now be obtained and these forged documents are cheap to obtain.

9.So under those circumstances, she considered that for these offences, the appropriate sentences should be higher than that as suggested in the Chan Man Mo case. I agree with Ms Lam that the case of Chan Man Mo was decided in the year 2000 and since then the situation has changed and it has become much easier for residents on the Mainland to obtain two-way permit to come to Hong Kong. And since then the court have been an increase in the number of Mainland visitors on two-way permit seeking to obtain employment in Hong Kong particularly with the use of forged documents, so it is a reasonable inference to draw from these facts that the forged documents were not only to obtain employment but also to be used to prolong the Appellant's stay in Hong Kong.

10.Having considered the case of Chan Hanwei HCMA 148/2003 and Xu Houde HCMA 562/2003, I am persuaded that the learned Magistrate was not wrong in imposing a sentence of 8 months' imprisonment on each charge.

11.As far as charge 2 is concerned, the fact that the Appellant was in possession of a forged construction industry card is a serious matter because by that he is falsely claiming to have been properly trained to work on construction sites. If he was indeed employed on a construction site, the consequences may be very serious. So the 8 months also in relation to charge 2 is not a day too long.

12.Despite the attractive argument from Ms Cheng, I do not consider that there are any grounds to justify allowing the appeal, so the appeal is dismissed.

Representation:

Ms Vinci Lam, GC of the Department of Justice, for the Respondent

Ms Flora Cheng, instructed by Joseph Li & Co., assigned by DLA, for the Appellant